Terms and Conditions
1.1 These terms of trade apply to all transactions between you and us relating to the provision of Research Services. These terms of trade take precedence over terms of trade contained in any document you prepare or submit or elsewhere.
1.2 The variation or waiver of a provision of these terms of trade or a consent to a departure from a provision of these terms of trade is ineffective unless in writing signed by you and us.
1.3 We may amend any provisions by notice in writing to you prior to acceptance by you. Such amended provisions supersede any relevant prior detail in dealings between you and us.
2. Fee Statement
2.1 We will provide you with a Fee Statement once you complete the Test Request. Any Fee Statement issued by us is valid for 7 days from the date of issue.
2.2 Following provision of a Fee Statement to you, we are not obliged to commence the Research Services until the Fee Statement has been accepted by you by paying the Fees.
3. Test Request
3.1 Every Test Request by you for the provision of Research Services must be submitted in writing on our standard order form via this website.
3.2 A Test Request will not be placed by you unless the Test Request clearly identifies the services ordered. Any costs incurred by us in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
3.3 Test Requests must be approved by you and will specify the estimated date of delivery. The estimated date of delivery of the result of the Test Request is not binding on Us.
3.4 Completion of the Test Request and payment of the Fees signifies acceptance by you of these terms of trade.
3.5 We may in our absolute discretion refuse to provide Research Services where:
3.5.1 the Test Request is incomplete;
3.5.2 the Test Request is outside of the parameters of our Research Services;
3.5.3 payment for Research Services previously provided to you or any related corporation or to any other party who is, in our reasonable opinion, associated with you under the same or another supply contract, has not been received by us.
3.6 A Test Request cannot be cancelled without our prior written consent. Where a Test Request is cancelled, you indemnify us against any loss we incur as a result of the cancellation, including, but not limited to loss of profit. Cancellation after commencement of the Research Services will incur the full Fees without any entitlement to a refund.
4.1 You may request that a Test Request be varied prior to the commencement of the Research Services by providing a request in writing to us. A request for a variation must be agreed to in writing by us in order to have effect.
4.2 If you wish to vary your requirements after a Fee Statement has been prepared or after the placement of a Fee Statement, we reserve the right to vary the Fee Statement to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accord with our then current charge rates. A revised Fee Statement issued by us in respect of the requested variation supersedes the original Fee Statement. If the revised Fee Statement only specifies additional work, the Fee Statement for that additional work will be in addition to the immediately preceding Fee Statement for the Research Services.
4.3 We shall be entitled to an automatic extension of time for the provision of the Research Services equal to the delay caused by the variation.
5.1 You and us agree to comply with our respective obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST in relation to GST.
5.2 All Fees described in a Fee Statement, including Fees described in this Brand Insight Website are exclusive of GST.
5.3 You must pay any GST incurred for the supply of Research Services. No GST is payable for the provision of Research Services outside Australia.
6. Additional Charges
6.1 We may require you to pay additional charges in respect of costs incurred by us as a result of reliance on inadequate or incorrect incidence rates, information or material provided by you or information or material supplied later than required by us in order for us to provide the Research Services within any specified time frame.
6.2 The imposition of additional charges may also occur as a result of your cancellation of a Test Request where cancellation results in loss to us, photocopying, communication costs, couriers, packing and handling, Government or council taxes or charges, additional work required by you or any other occurrence which causes us to incur costs in respect of your Test Request additional to the Fees appearing in the Fee Statement.
7. Product Warranties
Our Research Services come with warranties that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage.
8. Intellectual Property Rights
8.1 You acknowledge represent and agree that you own all Intellectual Property Rights pertaining to your Test Request for Research Services or you have a licence to authorise us to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied to us by you for the purposes of the Test Request.
Further, you indemnify and agree to keep us indemnified against any loss incurred by us in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by you.
8.2 Unless specifically agreed in writing between us and you, all Intellectual Property Rights in any works created by us on behalf of you vest in and remain our property, but in any event you grant to us a non-exclusive perpetual world wide licence to use all test results for future benchmarking or reporting.
8.3 Subject to payment of all invoices due in respect of the Research Services, we grant to you a perpetual, non-exclusive licence to use the works created or produced by us in connection with the provision of the Research Services under these terms of trade for the purposes contemplated by the Test Request.
9. Agency and Assignment
9.1 You agree that we may at any time appoint or engage an agent to perform any other obligation arising pursuant to these terms of trade.
9.2 We have the right to assign and transfer to any person all or any of our title, estate, interest, benefit, rights, duties and obligations arising from these terms of trade provided that the transferee agrees to assume any of our duties and obligations owed to you under these terms of trade.
9.3 You must not transfer or attempt to transfer any of your obligations or rights under these terms of trade without our prior written consent.
Notwithstanding any other provisions in these terms and trade we reserve the right to vary or amend these terms of trade from time to time and any order made by you following any amendments will represent your agreement to be bound by those terms and conditions as amended. We therefore recommend that each time you place a Test Request you read these terms.
11. Exclusions and limitation of liability
11.1 You agree that use of the Research Services is at your sole risk. To the maximum extent allowed by law, our liability for breach of any term implied in these terms of trade by any law is excluded.
11.2 All information, specifications and samples provided by us in relation to services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect your use of the Research Services will not entitle you to reject the Research Services, or to make any claim in respect of them.
11.3 We give no warranty in relation to any services provided or supplied. Under no circumstances are we or any of our suppliers liable or responsible in any way to you or any other person for any loss, damage, cost, expense or other claim (including consequential damages and loss of profits or loss of revenues), as a direct or indirect result of any defect, deficiency or discrepancy in Research Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
11.3.1 any Research Services supplied to you;
11.3.2 any delay in supply of the Research Services; or
11.3.3 any failure to supply the Research Services.
11.4 Any advice, recommendation, information, assistance or service given by us in relation to Research Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty of accuracy, appropriateness or reliability. We do not accept any liability or responsibility for any loss suffered as a result of your reliance on such advice, recommendation, information, assistance or service.
11.5 To the maximum extent permitted by law, we are not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide goods or services, or otherwise arising out of the provision of Research Services, whether based on these terms of trade, negligence, strict liability or otherwise, even if we have been advised of the possibility of damages.
11.6 You acknowledge that the Research Services are not for personal, domestic or household purposes.
11.7 The Australian Consumer Law may give to you certain guarantees. Where liability for breach of any such guarantee can be limited, our liability (if any) arising from any breach of those guarantees is limited with respect to services to the supply of services again or cost of re-supplying the services again.
12.1 You indemnify us and our employees contractors and agents in respect of any claim or demand made or action commenced by any person including, (but not limited to), you against us or, for which we may be liable, in connection with any loss arising from or incidental to the provision of Research Services, any Test Request or the subject matter of these terms of trade including, but not limited to any legal costs incurred by us in relation to meeting any claim or demand or any party/party legal costs for which we may be liable in connection with any such claim or demand. This provision shall remain in force after any variation or termination of these terms of trade.
13. Unavoidable Delay
13.1 If circumstances beyond our control prevent or hinder our provision of the Research Services, we shall be free from any obligation to provide the Research Services while those circumstances continue. We may elect to terminate any transaction or keep the transaction on foot until such circumstances have ceased.
13.2 Circumstances beyond our control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failure or malfunction of computers or other information technology systems.
14. Dispute Resolution
14.1 If a dispute arises between you and us, the following procedure applies:
14.1.1 A party may give another party a notice of the dispute and the dispute must be dealt with in accord with the procedure set out in this paragraph.
14.1.2 A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accord with this paragraph.
14.1.3 A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
14.2 If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 5 Business Days (or other period as agreed).
14.3 Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives the parties agree to endeavour to settle the dispute by mediation administered by the ACDC before having recourse to arbitration or litigation. The mediation must be conducted in accord with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the ACDC Guidelines are incorporated by reference into these terms of trade. This paragraph survives termination of these terms of trade.
14.4 Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.
14.5 The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
15. Other Matters
15.1 These terms of trade are governed by the laws of the State of Victoria in Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of the State of Victoria in Australia.
15.2 These terms of trade and any Fee Statements and written variations agreed to in writing by you represent the whole agreement between the parties relating to the subject matter of these terms of trade.
15.3 These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
15.4 You have not relied on any warranty, representation or statement, whether oral or written, made by us or any of our employees or agents relating to or in connection with the subject matter of these terms of trade.
15.5 If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
15.6 Our failure or delay to exercise a power or right does not operate as a waiver of that power or right.
15.7 A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a quote or commercial credit account application (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified; sent by facsimile transmission to the facsimile number of the addressee specified with acknowledgment of receipt from the facsimile machine of the addressee or sent by e-mail to the e-mail address of the addressee specified with acknowledgement of delivery.
15.8 A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the third Business Day after posting; or if sent by facsimile or e-mail before 4:00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
15.9 A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
15.10 All amounts are expressed in Australian Dollars.
In these terms of trade:
16.1 ACDC means the Australian Commercial Dispute Centre or any successor to that body.
16.2 Additional Charge means:
16.2.1 fees or charges for additional work performed at your request or reasonably required as a result of your conduct, calculated in accord with our then current prices
16.2.2 expenses incurred by us , at your request or reasonably required as a result of your conduct.
16.3 Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne Victoria.
16.4 Fees means the fees for provision of Research Services.
16.5 Fee Statement means a Statement of the Fees to be incurred by you for the provision of Research Services based on a Test Request.
16.6 GST means any goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.
16.7 Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
16.8 Loss includes, but is not limited to, costs (including party to party legal costs and our own legal costs), expenses, lost profits, award of damages, personal injury and property damage.
16.9 Test Request means a request for Research Services placed by you as varied in writing from time to time by the parties.
16.10 Research Services means any services to be provided by us to or for you in accord with a Fee Statement and Test Request and these terms of trade.
16.11 We or Us or Our means Brand Insight Pty Ltd trading as Brand Health and its related companies.
16.12 You or Your means the person identified as the customer and includes your agents and permitted assigns.
In these terms of trade, unless the context otherwise requires:
17.1 a reference to writing includes email and other communication established through our Website;
17.2 the singular includes the plural and vice versa;
17.3 a reference to a paragraph is a reference to a paragraph of these terms of trade;
17.4 a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
17.5 where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
17.6 headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
17.7 if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
17.7.1 if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
17.7.2 in all other cases, must be done on the next Business Day.